Brown Bear Baits, Inc. v. United States

OPINION

HODGES, Judge.

Plaintiff purchases marshmallows from Kraft Foods and packages the marshmallows for anglers to use as bait. Plaintiff tumbles the marshmallows in a converted dryer to remove excess starch, adds a small amount of mineral oil to create a “tackiness” on the surface of the marshmallows, then adds a “dusting” of a neon-bright color. The tackiness makes it possible for the bright colored dust to adhere.

Plaintiff testified at trial that this process was a marketing effort to attract anglers, more than a hope of attracting fish. The United States argued that plaintiff created a…